Inconvenient News,
       by smintheus

Wednesday, February 13, 2008

  Antonin Scalia justifies torture, again

It nearly beggars belief that we have a Supreme Court justice who'd seek to justify torture, but that is exactly what Antonin Scalia did in a BBC interview aired yesterday.

"Original Intent" Scalia doesn't seem to care that George Washington took an unequivocal stance against torturing captured prisoners during the young Republic's struggle for survival, at a time when the enemy were abusing American captives right and left. No more does Scalia give a damn about the constitutional prohibition of "cruel and unusual punishments". That, he told the BBC, applies to people only once they've been convicted of a crime. According to Scalia, if you're awaiting trial (or just plain hoping to get a trial someday), then maybe anything goes.

BBC: Tell me about the issue of torture, we know that cruel and unusual punishment is prohibited under the 8th amendment. Does that mean if the issue comes up in front of the court, it’s a ‘no-brainer?’

SCALIA: Well, a lot of people think it is, but I find that extraordinary to begin with. To begin with, the constitution refers to cruel and unusual punishment, it is referring to punishment on indefinitely — would certainly be cruel and unusual punishment for a crime. But a court can do that when a witness refuses to answer or commit them to jail until you will answer the question — without any time limit on it, as a means of coercing the witness to answer, as the witness should. And I suppose it’s the same thing about “so-called” torture.


Yes siree, in Scalia's bizarro-world you gain the protection of law by right of being convicted. The Fifth Amendment's guarantee of due process? That little matter of the presumption of innocence, the very foundation of our system of criminal law? Pfffttt.

Actually, come to mention it, what we've got is not so much a legal "system" as a Nielsen profile of Supreme Court justices' TV viewing habits. And you can't rule out the possibility that this season's plot twists will need to involve some torture, just a wee tad.

SCALIA: Is it really so easy to determine that smacking someone in the face to find out where he has hidden the bomb that is about to blow up Los Angeles is prohibited under the Constitution? Because smacking someone in the face would violate the 8th amendment in a prison context. You can’t go around smacking people about. Is it obvious that what can’t be done for punishment can’t be done to exact information that is crucial to this society? It’s not at all an easy question, to tell you the truth...

Seems to me you have to say, as unlikely as that is, it would be absurd to say that you can’t stick something under the fingernails, smack them in the face. It would be absurd to say that you couldn’t do that. And once you acknowledge that, we’re into a different game. How close does the threat have to be and how severe can an infliction of pain be?

There are no easy answers involved, in either direction, but I certainly know you can’t come in smugly and with great self-satisfaction and say, “Oh, this is torture and therefore it’s no good.” You would not apply that in some real-life situations. It may not be a ticking bomb in Los Angeles, but it may be: “Where is this group that we know is plotting this painful action against the United States? Where are they? What are they currently planning?”


Or, for that matter, any number of potential scenarios: "Have these punks been racing hot-rods lately?" "Let's see if the handyman knows who the burglers are." "What'cha say we beat the crap out of that bum over there?" In fact it's far from clear that any such confessions, in Scalia's world, would be treated as poisonous fruit.

If only the courts are willing to apply Scalia's "ends justify the means test" (definitively enunciated in Jack Bauer v. The World), they'll be able to justify almost any governmental activities. Just so long as officials don't call the torture "punishment", they're in the clear.

Presumably that explains why Scalia sees no need to take too seriously the federal torture statute, or international treaties. Geneva Conventions? Pfffttt. The UN convention on torture and cruel, inhuman or degrading treatment? Double pfffttt.

You'll be interested to learn that, notwithstanding his embrace of torture, there are indeed limits to what Antonin Scalia will tolerate. The practice of televising court proceedings, he told the BBC, is "sick".

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